United States v. David Holly ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1216
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID HOLLY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cr-00485-1 — Thomas M. Durkin, Judge.
____________________
ARGUED SEPTEMBER 4, 2019 — DECIDED OCTOBER 18, 2019
____________________
Before ROVNER, SCUDDER, and ST. EVE, Circuit Judges.
SCUDDER, Circuit Judge. Unreasonable seizures violate the
Fourth Amendment while voluntary encounters with the po-
lice do not. This case implicates the dividing line. A police of-
ficer rushed to approach David Holly in Chicago’s Altgeld
Gardens Housing Complex and asked if he had a gun. Holly
answered yes, which resulted in his arrest and subsequent
conviction for possessing a firearm as a convicted felon. Holly
later moved to suppress the gun, contending that the officer’s
2 No. 19-1216
approach and questioning constituted an impermissible sei-
zure. The district court denied that motion after finding that
Holly consented to the encounter. We agree and affirm. In the
totality of circumstances, Holly’s interaction with police fell
on the voluntary side of the line.
I
A
On December 31, 2015, Officers Robert Caulfield and Jo-
seph Byrne of the Chicago Police Department were patrolling
the Altgeld Gardens Housing Complex, a public housing pro-
ject in the city’s far south side. The officers were in uniform
and on patrol as part of a CPD effort to increase police visibil-
ity in anticipation of celebratory gunfire to usher in the new
year. They drove an unmarked black Ford, which Officer
Byrne later testified locals recognized as a police car. While
sitting in the car, Officers Byrne and Caulfield saw David
Holly walking on a sidewalk inside a courtyard of the com-
plex.
The parties dispute what happened next, but all agree that
the police approached Holly in the courtyard and asked him
if he had a gun. Holly immediately said yes. The police then
confiscated the gun and arrested him. A grand jury later in-
dicted Holly for possessing a firearm following a prior felony
conviction, in violation of 18 U.S.C. § 922(g)(1). He moved to
suppress the gun, arguing that his encounter with the police
was an impermissible seizure. He also moved to dismiss the
indictment, contending that the police’s failure to preserve
video footage of his arrest and activity leading to it violated
his due process rights under Brady v. Maryland, 373 U.S. 83(1963). The district court held a hearing on both issues and
No. 19-1216 3
heard competing testimony from Holly and the police. It then
denied Holly’s motions.
The testimony from the hearing frames the issues on ap-
peal. The officers testified that they had entered a parking lot
in Altgeld Gardens to get a better view of the interior court-
yard, which Officer Byrne considered a high-crime area based
on arrests he had made there before. Around 4:00 p.m., Officer
Byrne saw Holly walking on a sidewalk toward the police car.
Officer Byrne said that as Holly neared the car, he made eye
contact with the officers, formed a surprised and anxious
look, and then turned sharply and walked swiftly in another
direction, ultimately making his way behind a building and
out of the officers’ sight. Both officers testified that Officer
Caulfield then jogged after Holly and found him inside the
courtyard, standing outside an apartment door and ringing
the doorbell. (An occupant later told the officers she did not
know Holly.)
Officer Caulfield said that he identified himself as police
and asked Holly a single question: Do you have drugs or a
gun? Yes, Holly replied, he had a gun in his pocket. Officer
Caulfield took the gun and from there turned Holly toward a
wall to arrest him. By then Officer Byrne had reached the
apartment and assisted Officer Caulfield by handcuffing
Holly. Both officers testified that at no point did they draw
their own guns or touch Holly before placing him under ar-
rest. A third officer, Raul Casales, responded to a backup call
and met Officers Caulfield and Byrne about 15 to 20 seconds
after Holly’s arrest. Officer Casales testified that he had
drawn his gun but never pointed it at Holly.
Holly offered a starkly different account. He testified that
he never saw the police car or made eye contact with any
4 No. 19-1216
officer before being stopped and handcuffed. Holly instead
stated that he was ringing a friend’s doorbell when he saw
Officer Caulfield run around the corner and approach him
with his gun drawn. According to Holly, Officer Caulfield
then demanded that he put his hands up, grabbed him, and
told him he was being stopped because there were burglaries
in the neighborhood. Holly added that he did not feel free to
leave because he had lived in the neighborhood for decades
and knew the police stops there to be aggressive. Holly also
diverged from the officers’ accounts regarding the sequence
of events surrounding his arrest. He insisted that Officer Caul-
field patted him down, found a bulge, and only then asked if
he had a gun. By the time Officer Byrne arrived, Holly contin-
ued, Officer Caulfield had confiscated the gun and put his
own gun away.
After considering the competing testimony, the district
court credited the officers’ testimony. The district court ex-
plained that the accounts of Officers Caulfield, Byrne, and
Casales were consistent with each other. The district court
noted that the officers’ testimony made more sense than
Holly’s, observing in particular that the police do not typi-
cally draw their weapons on an unarmed offender or at close
range. By contrast, the district court found Holly less credible
given his criminal history and the fact that he had offered
three shifting explanations for why he had a gun. Having
credited the officers’ accounts, the district court then con-
cluded that Holly’s encounter with the police was consensual
and denied his motion to suppress.
B
The district court also heard testimony about Holly’s sec-
ond claim on appeal—that he was denied due process when
No. 19-1216 5
the police failed to preserve a video taken near his arrest. On
this score, the facts are straightforward and unfortunate.
Immediately after Holly’s arrest, Detective Peter Scatena
and Officers Byrne and Caulfield reviewed a video from the
only nearby camera that captured what transpired. Detective
Scatena then called Carlos Mackie, an analyst with the Chi-
cago Housing Authority, to request a copy of the video. When
Mackie did not answer, Detective Scatena left a voicemail
(consistent with CPD protocol). What Detective Scatena did
not know was that Mackie was on military leave and out of
the office for an extended period. He never heard back from
Mackie, followed up on the voicemail, or sought the video
some other way. And because CHA cameras automatically re-
write footage after 15 to 30 days, the video taken near Holly’s
arrest was eventually overwritten and thus no longer availa-
ble.
The district court heard conflicting testimony of what the
video revealed before it was overwritten. For his part, Detec-
tive Scatena testified that the footage showed Holly in the
courtyard walking at a hurried pace with two CPD officers
following “side by side” in the same direction. (Recall that Of-
ficers Byrne and Caulfield had testified that Officer Caulfield
pursued Holly ahead of Officer Byrne.) Detective Scatena also
stated that the video did not show Holly after he was hand-
cuffed. By contrast, Officer Byrne testified that the video only
depicted Officer Caulfield standing near Holly after he was
handcuffed—not the events leading up to the arrest.
While these accounts differed, the district court found the
inconsistencies minor and understandable given the passage
of time and the number of arrests that the police make in the
ordinary course. The district court underscored that no one
6 No. 19-1216
who watched the video (before it was overwritten) testified
that it depicted Holly’s arrest. Because Holly had not estab-
lished that the video was potentially exculpatory or that the
police acted in bad faith by failing to preserve it, the court de-
nied his motion to dismiss the indictment on the basis of a due
process violation.
The ensuing bench trial resulted in Holly’s conviction of
unlawful gun possession. The district court then sentenced
Holly to 90 months’ imprisonment and imposed 36 months’
supervised release.
II
A
Not every police encounter implicates the Fourth Amend-
ment. See United States v. Shields, 789 F.3d 733, 743 (7th Cir.
2015) (citing Florida v. Bostick, 501 U.S. 429, 439 (1991)). A sei-
zure within the meaning of the Fourth Amendment takes
place if, under the circumstances, a reasonable person would
not feel free to leave. Id. A consensual encounter, on the other
hand, takes place if a reasonable person would feel free to ig-
nore the police and go about his business. Id.In determining whether an encounter is consensual, we
consider several factors:
 where the interaction took place, including
whether it was in public;
 how many police officers were present;
 the extent to which the police presence was
threatening;
 whether the officers made any show of
weapons or physical force;
 the officers’ language and tone;
No. 19-1216 7
 whether the police suggested the defendant
was suspected of crime; and
 whether officers told the defendant he was
free to leave.
See id. These factors “are neither exhaustive nor exclusive.”
United States v. Smith, 794 F.3d 681, 684 (7th Cir. 2015) (citing
United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
B
We agree with the district court that Holly’s encounter
with the police was voluntary. It is undisputed that the police
spoke to Holly in public and never stopped him, redirected
his route, or otherwise obstructed his walking on the sidewalk
or through the courtyard. Officer Caulfield approached Holly
and put a question to him—do you have drugs or a gun?—
that he immediately chose to answer. See Florida v. Royer, 460
U.S. 491, 497 (1983) (explaining that the police do not violate
the Fourth Amendment by merely approaching a person in
public and asking him questions); see also Shields, 789 F.3d at
743–44.
The district court’s other findings, which Holly has not
shown are clearly erroneous, support its conclusion that the
encounter was consensual. The district court reasonably cred-
ited the officers’ accounts over Holly’s. It found Holly’s testi-
mony strained and implausible: he was a four-time convicted
felon, had an incentive to lie to escape punishment, and in the
course of proceedings, offered three inconsistent explanations
for why he had a gun. By contrast, the district court found that
the officers had no incentive at the time of the incident to en-
gage in misconduct (as they likely believed everything was
being captured on camera) and no incentive to lie in their
8 No. 19-1216
testimony after the fact. Considering each party’s position
and taking stock of their comparative credibility, the district
court was on solid footing in crediting the officers’ version of
events. See United States v. Biggs, 491 F.3d 616, 621 (7th Cir.
2007) (emphasizing that a district court’s determination of
witness credibility “can virtually never be clear error”).
Against this backdrop, the district court concluded that
Holly’s encounter with the police was voluntary. It found that
Officer Caulfield was alone when he jogged after Holly and
made no show of force—he did not pull a gun, touch Holly,
or tell him to put his hands up. Rather, upon catching up with
Holly, Officer Caulfield promptly asked a direct question—
do you have drugs or a gun?—and instantly received an
equally direct answer—yes. The question was not advanced
in a coercive tone or with an accompanying threat. Given
these circumstances, a reasonable person in Holly’s shoes
would have felt free to leave. See Bostick, 501 U.S. at 439;
United States v. Thornton, 463 F.3d 693, 698 (7th Cir. 2006)
(holding that an encounter was consensual where three offic-
ers approached a defendant in public and did not show weap-
ons, touch him, or use a tone or language that would have
communicated to the defendant that he was seized).
Holly disagrees. He sees this case on all fours with our de-
cision in United States v. Smith, 794 F.3d 681 (7th Cir. 2015).
There Dontray Smith was walking alone at night when two
armed and uniformed police officers waited for him to enter
an alley. Id. at 684. The officers then rode their bicycles past
Smith into the alley and made a U-turn to face him, obstruct-
ing his path forward. Id. at 685. From there one officer stepped
off his bike, approached Smith with his hand on his gun, and
“posed a single, accusatory question to Smith: ‘Are you in
No. 19-1216 9
possession of any guns, knives, weapons, or anything ille-
gal?’” Id. Considering the location, the threatening presence
of multiple officers, the aggressive nature of the questioning,
and the fact that the police blocked Smith’s path, we con-
cluded that the encounter constituted a seizure. Id.Holly is right that in both cases the police were in uniform,
approached the defendant, and asked about a gun. But the
similarities end there. The district court found that a single
officer spoke with Holly in an open courtyard in the after-
noon. Unlike the police in Smith, Officer Caulfield did not
block Holly’s path or draw his weapon, and the tone of his
question did not compel an answer.
No doubt that line-drawing in this area of law is difficult
and requires a careful parsing of exactly what took place be-
tween the police and the accused. But “[i]t is well established
that a seizure does not occur merely because a police officer
approaches an individual and asks him or her questions.” Id.
at 684. The district court proceeded carefully by holding a
hearing, considering the competing testimony, assessing
credibility, and ultimately finding that Officer Caulfield ap-
proached Holly and asked him a question—nothing more.
Under these circumstances, Holly’s encounter with the police
was voluntary.
III
Holly also renews his argument in the name of Brady v.
Maryland that the police violated his due process rights by
failing to preserve CHA video footage of the arrest and events
leading to it. We start from a different legal marker. The
proper framework for evaluating Holly’s claim comes not
from Brady, but rather from Arizona v. Youngblood, 488 U.S. 5110 No. 19-1216
(1988). While Brady requires that the government disclose ev-
idence materially favorable to the defendant “irrespective of
the good faith or bad faith of the prosecution,” see 373 U.S. at
87, Holly’s claim is that the police failed to preserve only po-
tentially exculpatory evidence.
Under Youngblood, the police’s failure to preserve poten-
tially useful evidence does not constitute a denial of due pro-
cess unless the defendant can show that the police acted in
bad faith. See 488 U.S. at 58. That standard requires proof of
animus or a conscious effort to suppress exculpatory evidence
and turns on an official’s subjective knowledge that the evi-
dence had exculpatory value. See United States v. Cherry, 920
F.3d 1126, 1140 (7th Cir. 2019). In addition to bad faith, the
defendant must show that the exculpatory nature of the evi-
dence was apparent before its destruction and that he could
not obtain the same evidence elsewhere. See id.Holly has not made these necessary showings. Detective
Scatena made a clear effort to preserve the video: he left a
voicemail requesting the video from the CHA and did so in
accordance with CPD policy. Detective Scatena did not know
that the analyst he contacted was on military leave. His failure
to follow up may have been negligent, but it does not prove
animus or a conscious effort to suppress the video. And mere
negligence by police does not amount to a constitutional vio-
lation. See Youngblood, 488 U.S. at 58.
Nor has Holly shown that the lost video had apparent ex-
culpatory value. Detective Scatena and Officers Byrne and
Caulfield each testified that the video did not show the actual
arrest. Their testimony was consistent on this score, leading
the district court to find that the video did not show the initial
encounter between Holly and the police and thus that any
No. 19-1216 11
footage “was neither exculpatory nor inculpatory.” On these
facts, the district court correctly concluded that the police did
not violate Holly’s due process rights under Youngblood.
To be sure, the failure of the police to preserve the video is
unfortunate. Mistakes happen, though, and that is all we can
say occurred here. But in closing it does seem prudent to offer
the limited observation that CPD would do well to revisit its
preservation protocol—all to protect the interests of CPD it-
self, citizens, and those like Holly who find themselves
charged with crime.
Seeing no violation of Holly’s rights here, we AFFIRM.